A lot of people have a lot of opinions about the place of fanfiction and copyright in the wake of Amazon’s announcement that they will publish and sell fanfiction for specific franchises. One author/fanauthor I follow sifted through the whole mess and had some questions lingering before she would hypothetically allow her original worlds to be available in this Amazon project:
Will I lose my copyright in the world/characters I’ve created if I allow others to use them or if I look the other way if someone else uses them in something that’s commercial? ? Further, what copyright do the fanfic writers retain on their work using my world/characters? How would that pan out?
One very common copyright myth that goes around is that your copyright will expire if you don’t vigorously protect it. Author Orson Scott Card has famously said ”if I do NOT act vigorously to protect my copyright, I will lose that copyright.”
Not only is this wrong, but it displays a fundamental misunderstanding of what copyright is, and how copyright functions under the Intellectual Property umbrella. Patents are about unique, non-obvious inventions. Trademarks are about branding. Copyright is about authorship.
Let’s take a look at all the music downloading cases— we all know the stories: you download one song off The Pirate Bay, your IP gets flagged, and the next thing you know you’re getting served with papers suing you for $150,000 per song you ever downloaded.
But let’s break down how these suits work: torrents are peer to peer networks, which means there’s an entire group of people downloading and uploading the same song/tv episode/movie simultaneously out of a decentralized web. Hypothetical You, who is now a defendant, is the only one of the swarm being sued. The record label is going after only one person.
However, the record label’s choice to bring one suit at a time doesn’t damage their ability to later go after anyone else in the swarm. If in two years they decide to pull your neighbor’s IP address out of the hat, they still have a valid case against your neighbor.
Not only that, but ignoring a thousand other people downloading the file doesn’t mean they’ve given up the copyright. Even if they never sued anyone for infringement for the download, they’d still own the copyright, and can still go after anyone who downloaded it.
The same holds true for fanfiction: our use of these worlds in no way diminishes or devalues the copyright the author holds in the original work.
Trademarks and copyrights aren’t the same thing. Copyright exists automatically in anything you create, but trademarks only exist for something you’re marketing, selling, promoting or using as a brand. And if you don’t protect your trademark against infringers, you run the risk of losing it, because if the awesome phrase you’re using as your trademark becomes associated with things not created by you & yours, then it no longer identifies only your stuff/goods/services/brand.
(This doesn’t mean you can - or should - go after anyone who uses the same phrase or design in any context, because other people who use your trademark in limited ways, such as to describe your thing or compare their stuff to yours, or in a narrative context, or in a transformative work, can do so. You don’t have to try to stop them, and the lack of trying won’t impact your trademark rights.)
May 23, 2013
Amazon is working with WB to publish (read: sell) fanfiction from the Gossip Girl, Pretty Little Liars and Vampire Diaries ‘verses. And they said that more “worlds” will be announced soon.
Basically, fanfic writers will be able to sell their fics - formatted for Kindle - via Amazon, and the restrictions are not as massive as you’d think!
No excessive product placement for non-show brands.
But here’s the thing about porn! Amazon says they don’t allow porn to be sold on their site, so as long as your fic content is no more explicit than anything that’s on Amazon’s site today (see: 50 Shades and anything in the erotica category) then it won’t run afoul of Amazon’s content restrictions - and if they say it does, then the Internet will stand behind you as if you were a Nutella fan barred from celebrating its wonderful tastiness.
HOWEVER, each World Licensor will be providing “Content Guidelines” for their specific ‘verse - and I can’t find those anywhere. THAT might make a significant impact on what types of fanfic one can and cannot sell, but until we’ve had a chance to look through them, we can’t determine the specifics.
I don’t think it’s realistic to be concerned that the existence of Kindle Worlds will mean that tv show/film/book creators will stamp out freely given fics. At this point, Kindle Worlds will only accept things over 5000 words, anyway, and the longstanding laches issue that protects fics posted elsewhere and given away will still hold.
However, it does mean that people who write in the fandoms covered by Kindle Worlds and sell ebooks of those stories outside of the Kindle license may find themselves dealing with cease & desist letters. But there was always a chance they would because of the commercial aspect of that action.
Also, this will leave fandom with a lot of questions on issues other than legality be on fan-created gift culture, commissions, fundraising for charity, or even the ability of pro writers to write in other universes>
Does this further “legitimize” fan creativity (which I think has long been a pretty legit hobby), will it just create an additional outlet for story distribution, and what other fandoms will WB add?
I wouldn’t be shocked if they bring Tomorrow People into this as the show launches in the fall, but what about things that are ending their runs like Nikita, or shows with massive fanbases and almost a decade of fan creativity, like the behemoth that is Supernatural?
Oh, and here’t the royalty-related info:
- Amazon Publishing will pay royalties to the rights holder for the World (we call them World Licensors) and to the Fic Author. Fic Author’s standard royalty rate for works of at least 10,000 words will be 35% of net revenue.
- In addition, with the launch of Kindle Worlds, Amazon Publishing will pilot an experimental new program for particularly short works (between 5,000 and 10,000 words). For these short stories—typically priced under one dollar—Amazon will pay the royalties for the World Licensor and will pay authors a digital royalty of 20% of net revenue. The lower royalty for these shorter works is due to significantly higher fixed costs per digital copy (for example, credit-card fees) when prices for the entire class of content will likely be under one dollar.
May 22, 2013
If you’re interested in reading the actual court papers filed by Universal and Smash in The Case of the 50 Shades Porn Film, you can find them on Scribid:
Smash’s counterclaim, where they say that 50 Shades is public domain because it was posted on The Internet
Universal’s Opposition to Defendant’s ex parte application to continue the preliminary injunction hearing to allow for discovery, where Universal says, among other things, no it bloody isn’t!
March 12, 2013
would the standard ff disclaimer count as a release statement? Because “Just playing, I own nothing” does sound a little like, “I have no copyright in this”. It’s definitely arguable, anyway. Does anyone know if EL James had such a disclaimer?
This story is based on characters and situations created and owned by JK Rowling, various publishers including but not limited to Bloomsbury Books, Scholastic Books and Raincoast Books, and Warner Bros., Inc. No money is being made and no copyright or trademark infringement is intended.
By using this, the author does not state that any copyrights are being abandoned or stories are being placed in the public domain.
There is no specific provision in the copyright law for disclaiming rights in copyrighted works, and of course, no obligation to do so. However, the Copyright Office will record a statement of your intention to relinquish rights in our official records because the document pertains to a copyright within the meaning of the statute. A statement of abandonment should identify the works involved by title and/or registration number. The office does not provide forms for this purpose.
The legal effect of recording a statement of abandonment is not clear. Moreover, its acceptance for recordation in this office should not be construed as approval of the legal sufficiency of its content or its effect on the status or ownership of any copyright.
Even if you use “I own nothing” language a court might not think that’s unequivocal enough to satisfy the vaguries of the statute, especially if the fic author (or fanartist, or vidder) was a teenager or misinformed about what the sentence meant or otherwise didn’t actually mean to place the work in the public domain. Also, if you place a work in the public domain, someone else can come along and, say, submit it to Lulu or Amazon’s self-publishing arm, etc., and give full credit to you, but make money off of the distribution of the story. We can’t imagine many fanfic writers wanting that to happen to something they’ve written. It would be totally legal, though! Look what all the bookstores and publishers do with novels that are old enough to put in the public domain. They add zombies, vampires, sex scenes, pretty covers, or a vlogging platform (often getting very creative) and then they’re able to make money off of it.
However, what people generally mean when they add disclaimers to fic is “please don’t sue me for creating things based on your characters.” This myth that you will be sued for fic is still pervasive in fandom, over a decade after these disclaimers became a common thing.
The thing is, these disclaimers aren’t legally necessary. The nature of fic means that the author is using source material that they did not create, so if the ficcer makes that clear by the summary and/or tags, starting a disclaimer with a “who owns what” statement is redundant.
The second part, the “no infringement is intended” bit, is what everyone thinks is important. The legal analysis gets long, but it boils down to the fact that fic could be infringing on copyright, except that fair use means it isn’t, which means that there is no liability for the infringement (if any).
I, Hllangel, stopped putting disclaimers on my fic for this reason. Besides, fic writers are small potatoes, and it would be far more costly to the media owners if they were to go after every piece of fic out there than it would be to us, both in terms of money and reputation. Yes, the big studios do pay attention to the way fic, art and vids help boost a show’s success. That said, because vidding is much more tangled from a legal perspective, in large part because of the inclusion of unedited songs, the authors of this blog continue to add disclaimers to our vids.
March 8, 2013